Foliage Follies: The Legal Side of Fall Clean-up Property Disputes Between Neighbors

/in /by Foliage Follies: The Legal Side of Fall Clean-up Property Disputes Between Neighbors

It’s the time of year when the air is crisp, school is back in session, and football is in full swing. It’s also the time of year when every leaf and branch from a neighbor’s property seems to fall on your side of the fence. Most often, a few more swipes of the rake or leaf-blower will solve the problem. But what happens when the falling foliage causes damage to your property? Or when the encroaching vegetation starts to infringe on other property?

In Maryland, the law is relatively settled that the “infringed-upon” property owner has no legal course of action. In Melnick v. CSX Corp., an individual owned property adjacent to a warehouse owned by CSX Corporation. Trees, branches, leaves, roots, and other vegetation from the CSX warehouse grew onto his property, clogged the drains, and caused significant damage to Melnick’s roof and property. He sued CSX Corp. for the damage.

The Court of Appeals of Maryland determined that Maryland had successfully traversed the last 300 years of adjudication without trying disputes about falling leaves and branches. The Court of Appeals expressly decided that it did not want to encourage this type of litigation that would surely inundate the courts with unnecessary disputes. The Court of Appeals determined that there is no legal cause of action between property owners where the basis is encroaching vegetation and foliage.

However, a property owner is not without recourse to protect his property from his neighbor’s vexatious vegetation. The Court of Appeals encourages property owners to take matters in to their own hands. In adopting the “Massachusetts Rule” of self-help, Maryland holds that a property owner is entitled to trim vegetation and encroaching limbs, branches, and roots “back to the property line” in order to protect her property. The self-helping property owner need not obtain permission or authorization to trim back to the property line. However, a self-helping property owner “may not enter the adjoining landowner’s property to chop down a tree or cut back growth without his neighbor’s consent.”

As the leaves begin to turn and a neighbor’s branches and foliage starts to cover other property, self-help (up to your property line) is the judicially encouraged method of resolving disputes. While a phone call to the neighboring property owner may be wise, as long as the infringed-upon property owner does not cross the property line, he may trim to the property line without hesitation.

For more information on this article, contact Justin Tepe at jtepe@fandpnet.com.

 

 

 

 

“The Mark of the Beast” – Fourth Circuit Considers an Employee’s Religious Beliefs in EEOC v. Consol Energy, Inc.

/in /by “The Mark of the Beast” – Fourth Circuit Considers an Employee’s Religious Beliefs in EEOC v. Consol Energy, Inc.

Under Title VII, employers are required to make reasonable accommodations for the religious observances of employees, unless doing so presents an undue hardship. But what types of religious beliefs require an accommodation? A recent case from the Fourth Circuit offers a surprising definition of a “religious belief,” and illustrates the need for employers to approach a request for accommodation with care.

The plaintiff in this case worked as a coal miner for the employer, Consol Energy, Inc., since 1975 without incident. In 2012, the employer implemented a biometric hand-scanner in order to track the attendance of employees. Use of the hand-scanner required that each employee scan his or her right hand while checking in or out of a shift.

The plaintiff, a life-long evangelical Christian, informed the employer that his religious beliefs prevented him from using the hand-scanner. Specifically, he believed that use of the hand-scanner would brand him with the “Mark of the Beast.” The employer requested a letter from a pastor explaining the need for an accommodation, which the plaintiff provided, along with his own letter explaining his beliefs. In a later meeting with the mine’s superintendent in June of 2012, the plaintiff offered to check in with his shift supervisor or punch in on a time clock, as he had done prior to implementation of the hand-scanner.

The employer responded with a letter from the hand-scanner manufacturer showing that the scanner did not detect or place a mark on the body of a person, and also contending that, because the “Mark of the Beast” was associated with the right hand, use of the plaintiff ’s left hand would be sufficient to satisfy his religious concerns. The employer then requested that the plaintiff provide another letter showing his church’s opposition to the use of the hand-scanner with his alternate hand. The plaintiff did not provide the letter.

Meanwhile, unbeknownst to the plaintiff, in July 2012, the employer provided an alternative to the handscanner to two other employees. Both of the employees were unable to scan either hand due to hand injuries. They were instead allowed to enter their personnel numbers on a keypad attached to the hand-scanner. In an email sent on July 25, 2012, the employer both simultaneously authorized use of the alternative system for the injured employees, and denied the accommodation to the plaintiff, stating that they would “make our religious objector use his left hand.”

In a later meeting in August, the plaintiff reiterated to the employer that he could not, “in good conscience,” use the hand-scanner. The employer then provided a copy of their disciplinary procedures, which provided for eventual discharge for failure to use the hand-scanner, and stated that the procedures would be enforced if the plaintiff refused to use the hand-scanner with his left hand. In response, the plaintiff retired under protest.

The Equal Employment Opportunity Commission (“EEOC”) brought suit on behalf of the plaintiff, alleging a failure to accommodate religious beliefs, resulting in the claimants’ constructive discharge, and seeking compensatory damages and injunctive relief. The jury returned a verdict for the plaintiff, and the lower court denied punitive damages, but awarded compensatory damages and an injunction against the employer to refrain from future failures to make reasonable accommodations. The parties appealed to the Fourth Circuit.

To show a violation of the duty to provide a reasonable accommodation, an employee must prove that (1) he or she has a bona fide religious belief that conflicts with an employment requirement, (2) he or she informed the employer of this belief, and (3) he or she was disciplined for failure to comply with the conflicting employment requirement.

In considering the first two elements of the plaintiff ’s claim, the Fourth Circuit found that the plaintiff had clearly laid out his religious objection to use of the scanner system in his dealings with the employer, and that there was ample evidence to show that he had a sincere belief that use of the hand-scanner was inconsistent with his religious beliefs. The employer did not attempt to dispute that the plaintiff ’s beliefs were sincere, but rather attempted to make an argument on the religious merits of the plaintiff ’s beliefs, contending, among other things, that scripture showed that “the Mark of the Beast can only be imprinted on the right hand.” The Court, however, noted that the law only requires a finding that an employee’s religious beliefs are sincerely held, and does not require a finding that the beliefs are correct, plausible, reasonable, or even that the religious views are commonly shared by the employee’s religious sect.

The employer then argued that the plaintiff was not disciplined, but instead had voluntarily resigned. The Court noted that, under the law, a plaintiff is constructively discharged when an employer deliberately makes the working condition of the employee intolerable. The Court reasoned that the employer put the plaintiff in an intolerable position when the employer completely failed to accommodate the plaintiff, knew of a costless option but refused to allow the option to the plaintiff, and required him to use the hand-scanner, which the plaintiff sincerely believed would make him a follower of the Antichrist.

On this basis, the Court found that the employer discriminated against the employee, and allowed compensatory damages to the plaintiff, but refused to allow punitive damages. In order to state a claim for punitive damages, an employee must show that the employer (1) intentionally discriminated against the employee, and (2) acted with malice or reckless indifference to the plaintiff ’s federally protected rights. The Court noted that “reckless indifference” requires that an employer discriminate while knowing or perceiving that the discrimination would violate Title VII. In this case, despite the actual violation of Title VII, there was not sufficient evidence presented to show that the employer appreciated that its efforts were inadequate, or risked inadequacy, under Title VII. In considering the issue, the Court noted that the employer engaged in long negotiations with the plaintiff and also offered him an alternative that did not require the scanning of his right hand.

Employers should be aware that an employee’s “bona fide religious belief ” does not need to be plausible, reasonable, religiously correct, or commonly shared by the employee’s religious sect. An inquiry into an employee’s religious beliefs should therefore be limited to determining whether they are “sincere.”

Upon notice of an employee’s religious belief that conflicts with an employment requirement, an employer should refrain from disciplining the employee or creating “intolerable” working conditions leading to the employee’s resignation. If a reasonable accommodation can be made to alleviate the conflicting employment requirement, the employer should do so. If no feasible changes can be made, the employer should seek legal counsel to determine whether accommodating the religious belief would impose an undue hardship on the business.

For more information on this article, contact Bert Randall at arandall@fandpnet.com.

 

Managers as Employers: Montgomery v. Iron Rooster – Annapolis, LLC, et. al.

/in /by Managers as Employers: Montgomery v. Iron Rooster – Annapolis, LLC, et. al.

In the case of Montgomery v. Iron Rooster- Annapolis, LLC, et. al., the United States District Court for the District of Maryland addressed whether a general manager may be considered an “employer,” and therefore be held liable for claims for unpaid wages and statutory damages under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MWHL”) and the Maryland Wage Payment and Collection Law (“MWPCL”).

The plaintiff was a bartender who sued Iron Rooster Annapolis and its three co-owners in the Circuit Court for Baltimore City, seeking to recover unpaid wages and statutory damages. The defendants then removed the case to federal court and subsequently filed a third-party complaint against Iron Rooster’s former general manager. The defendants essentially claimed that the former general manager was also the plaintiff ’s employer, and was therefore jointly and severally liable for any judgment entered under theories of indemnification and contribution.

The manager filed a motion for summary judgment, alleging that he did not control the day-to-day activities of the plaintiff; in support of this, the manager attached a settlement agreement between himself and the defendants in his own prior claim for wage loss against the defendants. The defendants responded by claiming the manager was liable as a “joint employer,” because the plaintiff reported to and worked under the manager, who supervised the plaintiff ’s work, set her schedule, and performed other management functions associated with the plaintiff ’s work for the defendants.

The Court looked to FLSA for guidance. FLSA defines an employer “as any person acting directly or indirectly in the interest of an employer in relation to an employee.” In determining whether someone qualifies as an employer under the FLSA, courts employ what is known as the “economic realities test,” which looks at multiple factors, including whether the alleged employer: “(1) has the authority to hire and fire employees; (2) supervises and controls work schedules or employment conditions; (3) determines the rate and method of payment; and (4) maintains employment records.” None of these factors are dispositive, rather, courts looks to the “totality of the circumstances” in order to determine whether an individual may be held liable as an employer. In considering the totality of the circumstances, courts will also look to “a person’s job description, his or her financial interest in the enterprise, and whether or not the individual exercises control over the employment relationship.”

After reviewing the facts of the case, the Court determined that the manager was not an employer as alleged by the defendants, and granted summary judgment in favor of the manager. Although some of the manager’s duties indicated that he may have met the factors of “economic realities” test, the Court reasoned that under the totality of the circumstances, the manager’s work involved “operational acts,” which did not amount to the type of “managerial control” necessary to establish the manager as an employer. The Court looked to the fact that the manager himself was an employee, as evidenced by the settlement agreement in the manager’s own prior claim for wage loss against the defendants, and, moreover, the manager was still subject to the defendants’ “ultimate managerial control.” Additionally, the Court looked to the fact that the manager had no financial interest in the defendants’ company, other than as an employee.

The Court did not completely rule out the possibility that managers could be potentially held liable for wage loss claims. Any employers seeking to minimize and/or avoid liability for wage loss claims should be aware that managers may be considered “employers” under FLSA in certain circumstances. However, employers who give their managers wide latitude to conduct the “operational acts,” or day-to-day activities of the business, should be aware that unless the manager exercises a large degree of “managerial control,” or has a stake in the business, the manager is unlikely to be held liable as a co-defendant under FLSA. Employers seeking to minimize liability for wage loss claims should make sure to develop and distribute detailed policies for the recording of hours and payment of wages. If a violation is brought about by a manager’s disregard for these policies, this might support a claim against the manager as a third party.

For more information on this article, contact James Hetzel at jhetzel@fandpnet.com.

 

“Good Faith vs. Retaliation” in Sexual Discrimination Retaliation Cases

/in /by “Good Faith vs. Retaliation” in Sexual Discrimination Retaliation Cases

In Villa v. Cavamezze Grill, LLC, 858 F.3d 896 (2017), the U.S. Court of Appeals for the Fourth Circuit considered whether the an employer’s good faith belief in an employee’s misconduct could serve as a defense to a retaliation claim. In this case, the plaintiff told her employer that employees were offered money in exchange for sex. The employer investigated the specific allegations and came to a good faith determination that the plaintiff was lying, and she was terminated. The plaintiff subsequently filed a complaint alleging retaliation under Title VII.

Title VII’s anti-retaliation provision makes it illegal for an employer to retaliate against employees for opposing or participating in a complaint process against any of its employees. The first part, known as the “opposition clause,” prohibits discrimination when the employee has opposed any employment practice made unlawful by the statute. The second part, known as the “participation clause,” prohibits discrimination when an employee has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under Title VII.

The Court noted that Title VII retaliation claims  require proof that the desire to retaliate was the “but-for cause of the challenged employment action,” that is, that the employee was terminated because he or she engaged in protected activity. The Court rationalized its decision, holding that the facts the employer actually perceived matter, and held that if an employer, due to a genuine factual error, never realized that its employee engaged in protected conduct, then the employer did not act out of a desire to retaliate against an employee. The Court noted that evidence of an obviously improper investigation could show that the claimed employee conduct was actually a pretext for terminating an employee for protected activity, but the plaintiff had already conceded that this was not the case. Based on the facts in this case, the Court found that the plaintiff failed to show that her employer was motivated by a desire to retaliate against her for engaging in conduct that was protected.

This case demonstrates the importance of having appropriate policies in place to fully investigate allegations of sexual harassment and discrimination. Employers should thoroughly investigate any allegations of harassment and document both the basis for any conclusions and the basis for any actions taken subsequent to the investigation. An employer needs to be able to justify its actions in terminating an employee, and ensure that the reason for termination is not actually a pretext for retaliation against the employee.

 

U.S. Department of Labor Reverses “Joint Employer” Standard

/in /by U.S. Department of Labor Reverses “Joint Employer” Standard

The U.S. Department of Labor recently announced its departure from the Obama-era “joint employer” standard.  The joint employment standard relates to an interpretation of the Federal Fair Labor Standards Act (“FLSA”), which dictates the standards and circumstances in which a business could be liable for various wage-law violations.  In 2016, the Department of Labor issued guidelines with a broader interpretation of the term “joint employment” to include a company that had “indirect control” over workers.  The broader interpretation in 2016 caused significant concerns for businesses, particularly those utilizing the franchise business model.

Additionally, the Department of Labor also withdrew guidance related to independent contractor classifications.  In 2015, the Department of Labor issued a statement noting that many workers are improperly identified as independent contractors, when they should be classified as employees and entitled to various protections under the law.  The 2015 guidance was intended to help make more workers eligible for minimum wage coverage, overtime, and other protections.

The current shift away from the 2015 and 2016 guidance is generally favorable to businesses.  Proponents of this change believe that the language implemented in 2015 and 2016 guidance was too ambiguous and opened the door to excessive litigation.  Many business owners believe the prior guidance is easier for companies to understand and comply with.  Specifically, franchisors are pleased with the shift back to “direct control” as the standard for determining whether a franchise is a joint employer.  Franchise owners have argued that the  Obama-era standard made it difficult to create new jobs.

Proponents of the 2105 and 2016 guidelines argued that the broader language of the joint employment benefits for workers, and to prevent employers from avoiding paying for unemployment insurance or payroll taxes.

The guidance issued by the Department of Labor does not have a binding effect, but it provides insight as to the Department’s goals and priorities.  The Department of Labor’s recent guidance changes signal a more employer-friendly approach than the previous administration had taken.

Massachusetts “High” Court Finds Wrongful Termination in Medical Marijuana Case

/in /by Massachusetts “High” Court Finds Wrongful Termination in Medical Marijuana Case

On July 17, 2017, the Massachusetts Supreme Court held that an employee who was terminated after she tested positive for marijuana could sue her employer for disability discrimination. In the case of Barbuto v. Advantage Sales and Marketing, LLC, an employee brought suit against her employer for disability discrimination. At the outset of her employment, the plaintiff was required to take a mandatory drug test and advised the employer that she uses medical marijuana to treat her Crohn’s disease, for which she held a valid prescription pursuant to Massachusetts law. The plaintiff alleged that she did not use marijuana on a daily basis, nor did she use marijuana before or during work. The plaintiff worked one day before being terminated for testing positive for marijuana. The representative of the employer who terminated the plaintiff advised that the employer follows federal law regarding marijuana use.

The employer argued before the Massachusetts Supreme Court that because marijuana is illegal under federal law, there is no obligation for an employer to accommodate an employee’s use of medical marijuana. The employer relied on similar cases throughout the country that support this proposition, which have consistently held that an accommodation for medical marijuana is not required to be provided by the employer. Courts in states including California, New Mexico, Oregon, Washington, Montana, and Colorado have all held that there is no duty for private employers to accommodate the use of medical marijuana, and that employers may terminate employees for positive drug testing.

In a decision that is the first to go against the tide of national cases finding that accommodation for medical marijuana is not required, the Court in Barbuto found that an employee could sue an employer for disability discrimination for failure to accommodate medical marijuana use, and that an accommodation for medical marijuana use is not facially unreasonable. The Court held that because the plaintiff’s physician opined that marijuana is the most effective treatment for her condition, and that any other permissible medication would have been less effective, an exception to the employer’s drug policy to permit medical marijuana use was a facially reasonable accommodation. The Court also cited the text of the Massachusetts medical marijuana act, which declares that patients shall not be denied “any right or privilege” on the basis of medical marijuana use. Accordingly, the Court determined that if accommodation of medical marijuana was treated as a per se unreasonable accommodation, the employee would effectively be denied the “right or privilege” to reasonable accommodation for medical marijuana use.

The Court made clear that use of marijuana before or during work continues to be impermissible. Furthermore, the Court was also careful to note that the plaintiff may not ultimately prevail on the merits of her disability discrimination case, and remanded this matter to the Superior Court for further consideration of the issue of whether accommodating the plaintiff’s medical marijuana use would cause an undue hardship on the employer’s business.

This case is significant because it is the first time a state’s high court has ruled that employees who use medical marijuana may have protection from termination from their employment. This decision is a marked departure from other cases on this issue to date, which have all relied on marijuana’s status as a Schedule I controlled substance under federal law to hold that employees who use medical marijuana are not protected from adverse employment actions. Maryland courts have not weighed in on this issue, and there are no explicit employment protections for medical marijuana use in Maryland’s medical marijuana statute. As this case is so recent, it is unclear whether the decision of the Massachusetts Supreme Court represents an aberration from the rest of the country on this issue or whether this case will signal a new trend in medical marijuana litigation

For more information on this article, contact Sarah Lemmert at slemmert@fandpnet.com.

MD’s Highest Court Weighs in on the Effect of a Subsequent Intervening Accident

/in /by MD’s Highest Court Weighs in on the Effect of a Subsequent Intervening Accident

In Electrical General Corp. v. Labonte, 229 Md.App. 187 (2016), a case discussed in the winter 2017 issue of Franklin & Prokopik’s First Report, the Maryland Court of Special Appeals provided additional guidance regarding the effect of a subsequent intervening accident on a claimant’s entitlement to workers’ compensation disability benefits. There, the state’s intermediate appellate court affirmed a decision of the lower court to overturn a decision of the Maryland Workers’ Compensation Commission, which denied a claimant additional permanent disability benefits. More recently in July 2017, the Court of Appeals, Maryland’s highest court, affirmed the Court of Special Appeals. Specifically, the high Court held a subsequent intervening event does not necessarily preclude an award of increased permanent partial disability benefits.

On September 2, 2004, Michael Labonte sustained a compensable work-related back injury and received medical and indemnity benefits from his employer, Electric General Corporation. On December 31, 2006, Mr. Labonte reinjured his back during an altercation with a police officer outside the scope of his employment. Mr. Labonte subsequently received an Award of permanent disability benefits in 2007. The Commission found Mr. Labonte had sustained 30% permanent disability to his back, with 20% attributable to the 2004 work accident and 10% attributable to pre-existing and subsequent conditions. When Mr. Labonte returned to the Commission in 2012 seeking additional benefits for an alleged increase in permanent partial disability due to his back condition, the Commission found no increased disability related to the 2004 work accident. On appeal, a jury reversed the Commission’s decision and found Mr. Labonte’s back complaints were related to his work injury. The jury awarded Mr. Labonte both increased permanency benefits as well as medical treatment and expenses. As noted above, following an appeal to the Court of Special Appeals, that court then affirmed the jury’s decision. The Court of Appeals granted Electric General’s petition for certiorari in December 2016.

Before the Court of Appeals, Electric General reiterated arguments made previously, namely that when the Commission makes a finding of disability due in part to a subsequent intervening injury (such as the Commission’s 2007 permanency award with apportionment for Mr. Labonte’s 2006 back injury), the employer and insurer are no longer liable for benefits or treatment. Electric General relied, in part, on Martin v. Allegany County Bd. of County Com’rs, 73 Md.App. 695 (1988), wherein the court shifted the liability for temporary total disability benefits from one employer to another where the claimant had an intervening accident with the second employer. Ultimately in Martin, the Court of Appeals held it is the final accident contributing to the disability which provides the basis for liability for temporary total disability benefits.

Rather than relying on Martin, the Court of Appeals in Labonte looked to its decision in Reeves Motor Co. v. Reeves, 204 Md. 576 (1954). In Reeves, the Court of Appeals reversed an award for permanent partial disability benefits because a subsequent surgery broke the causal connection between the work incident and the permanent partial disability. In that case, the Court reasoned it was proper to deny permanent partial disability benefits, given there was no evidence that the ongoing disability remained causally related to the work injury. Accordingly, the Labonte Court applied Reeves and reasoned that permanent partial disability is possible despite an intervening event, so long as there is evidence that at least some permanent partial disability remains causally related to the work injury. Any permanent partial disability that is unrelated to the work injury would not be the responsibility of the employer and insurer.

Labonte suggests a claimant’s subsequent injury does not preclude an employer and insurer from all liability, at least where permanent partial disability benefits are involved. As a practical matter, however, the Commission may still weigh the severity of the subsequent injury and the nature of the treatment involved when apportioning an award of permanent disability. Additionally, Martin still provides clear authority that where a subsequent injury is the basis for at least part of a claimant’s disability, there may be no further liability for temporary total disability benefits.

For more information about this article, please contact John Archibald at 410.230.3064 or jarchibald@fandpnet.com.

To Appeal or Not to Appeal? Relevant Considerations When Faced With an Unfavorable Commission Decision

/in /by To Appeal or Not to Appeal? Relevant Considerations When Faced With an Unfavorable Commission Decision

There are times when an award of compensation or order issued by the Maryland Workers’ Compensation Commission is unfavorable or seemingly unfair, leading an employer or insurer to consider filing a petition for judicial review. However, an appeal of an adverse decision does not always result in a significant benefit to the employer and insurer, even if it is successful. How can employers and insurers determine whether the potential benefit of challenging the Commission’s decision warrants the time and costs involved?

There are four main questions which can help guide a decision of whether or not to take an appeal:
1. Is the jurisdiction favorable?

From a strategic standpoint, when deliberating an appeal, it is helpful to examine the potential jurisdiction in which such an action would be filed. How strong is the evidence in your favor versus how sympathetic the claimant is in the jurisdiction covering the appeal? Juries with no experience in workers’ compensation law may respond more strongly to emotion than a Commissioner with a background in interpreting cases through medical diagnoses and records.
2. What are the estimated litigation costs associated with the appeal?

It is important to employ a cost-benefit analysis in the evaluation of any appeal. Expert fees, videographer fees, court reporter fees, and attorney’s fees scale with the complexity of the case, among other factors. Many times these costs can simply outweigh the potential gain—especially when factoring in the risk that a jury does not side with the employer and insurer.
3. What portion of the ordered benefits, if any, will be outstanding by the time the appeal is over?

An appeal is not a stay of the Commission’s decision. Ongoing medical and indemnity benefits must be paid during the pendency of an appeal. Maryland Rule, Labor & Employment § 9-741 does, however, allow employers and insurers to hold in escrow payment of past incurred medical bills and claimant’s attorney’s fees when an appeal is filed. Even if a judge or jury overturns a Commission Award of ongoing benefits, there is no mechanism to return those benefits. Rather, an employer and insurer are left to pursue any available credit for compensation previously paid against future indemnity benefits.

When considering an appeal, employers and insurers should consider what portion of the ordered benefits will be outstanding by the time a final decision is reached. An ordered period of permanency benefits begins starting on the date following the last compensation paid to a claimant. Thus, when deciding to appeal a permanency award, employers and insurers can generally estimate what portion of benefits will remain unpaid at the time of trial. For a jury trial, courts can vary from eight months to eighteen months from the filing of the appeal to trial. Will the entire award be paid (and only reimbursable via credit) at the time of trial or will a favorable result yield an immediate savings through the termination of ongoing benefits? Given the ongoing benefits typically associated with awards of serious disability or permanent total disability, challenging these types of decisions may be more worthwhile, particularly where the Commission has awarded minimal serious disability benefits.

4. What bearing does the Commission’s decision have on the continued exposure of the claim?
In evaluating a potential appeal, consideration should be given to the effect of the Commission’s decision on the future value of the claim. For example, does the decision at issue open the door to a future of extensive care, multiple surgeries, and potentially serious disability? Or, does the decision merely represent a disagreement of a few percentages on a first or second tier permanency award?

When it comes to an order authorizing medical treatment, claimants will typically have undergone any ordered treatment by the time of trial. For this reason, the issue of future exposure tends to be more relevant than the cost of treatment. A spinal surgery, ongoing head injury treatment, or other treatment to a complex system is more likely to lead to a great deal of future exposure than physical therapy for a sprain/strain or a carpal tunnel release surgery. It would typically be more reasonable to appeal the type of treatment for the former category than the latter.

For more information about this article, please contact April Kerns at 410.230.2975 or akerns@fandpnet.com.

Virginia Deputy Commissioner “Swats” Claim for Accidental Injury

/in /by Virginia Deputy Commissioner “Swats” Claim for Accidental Injury

Alex Mayfield in the Herndon, Virginia office recently prevailed at an evidentiary hearing on the denial of a claim before the Virginia Workers’ Compensation Commission. Claimant, appearing pro
se, alleged he sustained an injury to his chest, shoulder, and neck, when he swatted at a fly while working as a test proctor. In addition to lifetime medical benefits, Claimant sought temporary total disability benefits from the date of injury to present and continuing.  On behalf of the Employer and Insurer, Alex raised defenses of: (1) no injury by accident arising out of or in the course of  employment; (2) Claimant not disabled to extent alleged; and (3) Claimant failed to provide timely notice of his alleged injuries.

At the evidentiary hearing, Claimant testified that he was seated at his workstation when he observed a flying insect that flew underneath his desktop. After he spotted the insect, he testified that he bent forward at his waist for approximately 15-30 seconds in an attempt to swat the bug away with a piece of paper. As he was straightening up to a seated position, he allegedly felt a burning sensation or spasm in his stomach/chest.  Claimant testified on cross-examination that the bug was “not a regular fly” and that he did not want the people undergoing testing to be disturbed. Additionally, he stated that his job duties as a test proctor required him to exterminate pests from the facility, including rats.  As to medical treatment, Claimant stated he initially thought the pain would subside, but eventually sought treatment at the emergency room, where he was given muscle relaxers and pain medication.

Although Claimant claimed wage loss related to the alleged work accident, including an inability to work for eight hours a day due to his pain, he admitted to subsequently working as a shuttle driver and accepting “love offerings” (i.e., donations) through the ministry.  Claimant provided minimal medical evidence to the Commission, which included a referral for physical therapy dated February 6, 2016, and a “Patient Visit Information” document from the emergency room noting a visit on February 19, 2016 for a chest wall and muscle spasm.  Claimant, upon his request for hearing, had the burden of proving the essential elements of his case by a preponderance of the evidence. For a basic accidental injury claim in Virginia, the essential elements include
an (1) injury by accident, (2) arising out of the claimant’s employment, and (3) in the course of the claimant’s employment. Additionally, a claimant must prove the causal relationship of the alleged accident to medical treatment sought and subsequent wage loss.

The Deputy Commissioner weighed the evidence presented at the hearing and ultimately found that the claimant did not meet his burden of proving an injury by accident arising out of his employment because “the simple act of sitting back up in a chair after swatting at a fly” is not a risk associated with Claimant’s
employment. In his Opinion, the Deputy Commissioner relied on important authority regarding the “arising out of ” prong of an accidental injury claim—“‘[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.’ Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306
(1989).” If the general public is exposed to the same risk outside of the workplace, then the injury is not likely to be found as compensable under the Act.

Because the Deputy Commissioner found that Claimant did not prove an injury by accident, he did not make findings related to the other defenses raised. As this case was decided at the evidentiary hearing level, it does not have any precedential value, but it provides an overview of the law regarding the “arising out of ” element needed to prove compensability. Many injuries, although they occur at work, are not compensable
injuries under the Virginia Workers’ Compensation Act.

For more information about this article, please contact Alex Mayfield at 571.612.5948 or amayfield@fandpnet.com.

Maija Jackson Recognized for Success Defending MD Workers’ Compensation Claims

/in /by Maija Jackson Recognized for Success Defending MD Workers’ Compensation Claims

Last July, F&P principal Maija B. Jackson was recognized by firm client Westfield Insurance Company for the positive outcomes she has obtained on its behalf in defense of Maryland workers’ compensation claims. Specifically, Westfield extended its congratulations for the successful resolution of Duc Vo v. AW Industries before the Maryland Workers’ Compensation Commission. Westfield’s WC Claims Leader, Joshua R. Dixon, along with WC Claims Specialist Kyle Haines and Sr. WC Claims Representative Elizabeth Moyer, traveled from Pennsylvania to present her
with the inscribed Golden Gavel Award at a celebratory luncheon in Baltimore.  Maija has been practicing law for 25 years and concentrates her practice in the area of Maryland workers’
compensation law, including subrogation and insurance coverage issues in the workers’ compensation context. She has been a principal with the firm since its inception in 1999.